Speaking with Law360 on the Interior Department’s decision to revise its longstanding interpretation of the scope of the Migratory Bird Treaty Act, a 1918 law that protects migratory birds, Eric Murdock discusses what this means for businesses whose activities inadvertently result in fatalities of protected birds. He explains that by reading the act more narrowly to prohibit only actions that are intended to kill or capture birds, DOI’s new legal opinion should mean there will be no new enforcement actions, at least under the current administration, for those alleged to have violated the MBTA due to incidental take. As a result, some businesses may be less inclined to follow the full range of protective measures the U.S. Fish and Wildlife Service recommends for entities hoping to benefit from favorable enforcement discretion in the event of an incidental take. Eric says, “This may eliminate some of the leverage that the Fish and Wildlife Service might have had in trying to encourage people to agree to resolve threatened enforcement actions.” Eric notes, however, that projects such as wind farms are long-term investments and the owners therefore may choose not to change their approach to MBTA compliance too much in view of the possibility that the next administration may reverse course and take the position once again that the MBTA prohibits incidental take.

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